ENVI Committee Report

Clearly there are key challenges facing federal EA that have not been addressed, or only partially, by Bill C-9. In this report the Committee makes recommendations to address them, in the hope that the Government of Canada will act upon them. The key challenges could be described as follows:

•	Providing a clear vision for federal EA;

•	Effectively enforcing EA responsibilities;

•	Employing EA as a constructive tool to improve projects;

•	Conducting panel review of major projects;

•	Assessing cumulative environmental effects;

•	Achieving federal environmental commitments through EA;

•	Promoting meaningful public participation;

•	Incorporating Aboriginal perspectives;

•	Improving of strategic environmental assessment.

3.1       A Clear Vision for Federal Environmental Assessment

As noted, Bill C-9 is important in the short-term. Over the longer term, further government and parliamentary attention is required to ensure that projects, policies and programs are environmentally sound, and the integrity of ecosystems is protected.

In 1999, prior to starting the five-year review, the government determined that the review would be undertaken by the Agency (and not a parliamentary committee) and that the scope of the review would be narrowly defined. When Environment Minister David Anderson directed the Agency to prepare amendments for tabling in Parliament in the autumn of 2000, the tight timing clearly precluded an in-depth review of CEAA.

It is important to note that although CEAA has been in force for seven years, the essential structure (e.g., screenings, panel reviews with oversight, as well as panel administration by a federal agency) and features (e.g., assessments of projects to determine adverse environmental effects and their significance) differ little from the EARP Guidelines approved by Cabinet in early 1984. Thus, in 18 years the core structures and features of the federal approach to project EA have not changed substantially. The five-year review could have undertaken an analysis of federal EAs and identified new ways, where appropriate, to conduct them; in large measure, this was not done.

The Committee’s view is that the current emphasis on process must be matched by an emphasis on results on the ground. In addition to providing information to decision makers about adverse effects of projects, EA must deliver results, i.e. provide projects, policies and programs that benefit the environment, and ensure the integrity of ecosystems. Furthermore, the EA process must offer opportunities for meaningful public participation.

During hearings, the Committee noted that neither CEAA nor Bill C-9 clearly articulates the expected results of federal EA, nor how these results are to be measured. The preamble to CEAA describes the government’s intention “to achieve sustainable development by conserving and enhancing environmental quality.” The legislated purposes of CEAA as it stands⁵ are to “ensure that the environmental effects of projects receive careful consideration”; “encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy”; “ensure that projects … do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out”; and “ensure that there be an opportunity for public participation in the environmental assessment process”. These four purposes are important. In addition, the Committee believes that another important purpose of the Act should be to ensure that alternatives to the proposed project be considered. Yet, the level of achievement for the original four purposes has not been measured systematically, and evidence as to how well federal EA is achieving results is largely anecdotal. One of the consequences and problems arising from the lack of information about the success of EA in achieving environmental benefits is public confusion. According to Paul Muldoon of the Canadian Environmental Law Association, this confusion can lead to a distrust of EA in Canada.

I think it’s fair to say there is a crisis in credibility with environmental assessment in Canada. I think the public is very confused. They are often given the impression that a project undergoes a thorough, fair, and environmentally comprehensive assessment, but we find that the process was used to legitimate unsustainable and environmentally harmful activities. As a result, they are both confused and frustrated with the process, but more importantly, with the result. Process is not good enough if the result is a project that is or becomes unsustainable. (Meeting 70)

In addition to the lack of reliable analysis of environmental results achieved under CEAA, Peter Duck, President of the Bow Valley Naturalists, noted that each EA needs to follow criteria that would ensure consistency among assessments so that the public can understand how a determination is made.

If we’re to achieve consistency and transparency, we need to establish and use criteria for making these decisions. It’s important for the public to know how that determination is being made. It may change over time, and it may change from one assessment to another, but we need to have those frameworks out there, so that the public understands how those decisions are being made. (Meeting 66)

But so far, federal resources have largely been devoted to implementing the prescribed process. Little attention has been paid to achieving concrete results that benefit the environment and enhance the sustainability of projects. The Committee believes that in future, federal EA must include the achievement of results measured in terms of project sustainability, integrity of ecosystems and improved decision making through public involvement; the mere completion of EA activities is not enough. Therefore, the Committee urges the Government of Canada to develop specific goals, targets, and performance measures for CEAA as argued by Lucien Cattrysse, Chair of the Technical Advisory Group for the Canadian Environment Industry Association. (Meeting 64)

This discussion would be incomplete without examining another crucial issue: the meaning of the terms “significance” and “significant adverse environmental effect.” In his testimony, Rodney Northey, Counsel for Environmental Defence Canada, pointed out that the crux of CEAA and the performance of an EA rely on the interpretation of the term “significant environmental effect”:

To me the whole test of this act is: What is a significant effect? … There is no definition of “significance” anywhere. The Canadian Environmental Assessment Agency is reluctant to provide a definition. In the 30,000 assessments that have gone on to date, there’s only one where I think there’s been a finding of significance. … I would say that there is a massive bureaucratic imperative against a finding of significance because then you’ve got to go fund the panel review. So how does one create some independent means of assessing whether an effect is significant? … I don’t think right now there are requirements that the standards be articulated in an assessment and I think this committee should demand that an assessment include reference to the relevant standards, and an assessment of significance in relation to those. (Meeting 73)

The term “significance” appears to have lost much of its meaning, and hence its utility. Under CEAA, the environmental quality goal — the standard applied to EAs conducted under the legislation — is the avoidance or minimization of significant adverse environmental effects. In Canada’s national parks, however, a different, and much clearer, standard prevails. Under the “ecological integrity” standard used by Parks Canada, the result to be achieved is the maintenance of parks unimpaired for future generations.

In future, CEAA should apply a different standard when assessing potential environmental impacts within national parks to ensure that the result of maintaining ecological integrity is achieved, rather than the avoidance of “significant” adverse environmental effect. Even outside national parks, the Committee questions the value of the “significance” test as it is currently being applied, and urges the government to develop more positive, measurable standards for all CEAA EAs.

THE COMMITTEE RECOMMENDS THAT THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT BE AMENDED TO INCORPORATE AN effective APPROACH THAT would achieve TANGIBLE RESULTS IN ENVIRONMENTAL ASSESSMENTS, BOTH IN TERMS OF PROJECT SUSTAINABILITY AND ECOSYSTEM INTEGRITY. THE COMMITTEE FURTHER RECOMMENDS THAT SPECIFIC TARGETS, PERFORMANCE MEASURES AND PROCESS STANDARDS BE DEVELOPED IN ORDER TO ACHIEVE THESE RESULTS.

THE COMMITTEE FURTHER RECOMMENDS THAT THE TERM “SIGNIFICANT,” IN THE PHRASE “SIGNIFICANT ADVERSE ENVIRONMENTAL EFFECT,” BE DEFINED IN THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT TO INCLUDE AT LEAST THE FOLLOWING FACTORS:

•	AN EFFECT THAT EXCEEDS ANY REGULATED FEDERAL OR PROVINCIAL ENVIRONMENTAL QUALITY STANDARD OR TARGET;

•	AN EFFECT THAT IS INCONSISTENT WITH ANY INTERNATIONAL COMMITMENT OF THE GOVERNMENT OF CANADA; AND

•	AN EFFECT THAT EXTENDS INTO ANY TERRITORY THAT IS WITHIN THE JURISDICTION OF A GOVERNMENT OTHER THAN THE FEDERAL GOVERNMENT, AND WHICH HAS BEEN THE SUBJECT OF A PUBLICLY STATED CONCERN OF THE GOVERNMENT OF THAT JURISDICTION.

IN ADDITION, BECAUSE OF THE IMPORTANCE, IN LAW AND PRACTICE, OF THE TERM “SIGNIFICANCE,” ITS DEFINITION SHOULD CONTINUE TO BE STUDIED IN ORDER TO ENSURE THAT ITS STATUTORY DEFINITION DOES NOT LIMIT THE MINISTER’S POWER TO ACT WHEN NECESSARY.

3.2       Effective Enforcement of Environmental Assessment Responsibilities

Self-assessment, which means that the federal department empowered to make a project decision is also the authority that conducts the EA (except for panel reviews and mediations), is a key CEAA principle. A major benefit of self-assessment is that federal departments are engaged in the work of understanding for themselves the environmental effects of projects over which they have decision-making authority. The five-year review did not consider whether the system of self-assessment itself is a major factor limiting the quality and effectiveness of EAs under CEAA, but many witnesses suggested that is indeed the case.

For example, Paul Muldoon criticized the self-assessment system on the grounds of a lack of an independent, arm’s-length relationship between the body conducting the EA and the ultimate decision maker.

The Canadian Environmental Law Association has been long critical on something that goes to the root of the Act, the self-assessment process. We have government agencies assessing their own projects. We realize the Commissioner of the Environment and Sustainable Development has also been very critical of this aspect. We’ve been saying it for some 20 years, and we feel compelled to say it again: the self-assessment process must be replaced by a binding process administered by independent central agencies with the power to compel compliance with the Act. (Meeting 70)

The Committee also heard from Ed Whittingham, Director of the Banff Environmental Action and Research Society, who provided a clear example of where the self-assessment system brings about an apparent conflict of interest involving Parks Canada that could lead to potential bias in EA decisions.

Parks Canada is both proponent and responsible authority in 25% of EAs in Banff National Park. As you can imagine, being RA proponent can lead to a certain degree of conflict of interest. Secondly, Parks Canada, after it had its budget slashed by about 25% in 1996, has been faced with other means of raising revenue. Two of those means are keeping people in the park longer, and also bringing people into the park during the shoulder seasons, i.e., the fall and the spring, when normally they wouldn’t be coming to the park. We think this lends bias of approval to projects that do exactly that. (Meeting 61)

The Commissioner of the Environment and Sustainable Development, in 1998, examined the compliance of federal departments with CEAA process requirements. Based on a study of 187 EAs, the Commissioner found that “screenings may not consider all of the elements of a project or all of its potentially significant environmental impacts” and that “monitoring of mitigation measures and follow-up of environmental results are insufficient.” The Commissioner also reported that, “there are significant deficiencies in the quality and usefulness of public information about federal environmental assessment, particularly information on screenings.” (Chapter 6, 1998 Report)

Not only has departmental compliance with CEAA requirements been unimpressive, but also there is no enforcement power under the Act that would allow the Agency to improve matters. The Act grants no powers to make enforceable decisions or impose penalties for non-compliance. Bill C-9 would provide additional duties to the Agency to promote and monitor compliance, and, as amended by the Committee, would require the Agency to ensure compliance by federal authorities, responsible authorities and proponents, but even the new provisions do not include penalties for non-compliance. Even expanding the Agency’s duties may be of little value, as the new duties are unaccompanied by powers that would permit those duties to be effectively fulfilled. According to Robert Gibson, visiting scholar at the Sustainable Development Research Institute at the University of British Columbia, the lack of enforcement provisions has made the achievement of CEAA’s objectives difficult.

CEAA contains no means of setting and imposing terms and conditions of approval. Instead it relies on a highly inconsistent set of permitting, contracting and other vehicles many of which are ill designed for the purpose. (Meeting 65)

Bill C-9 responds to this issue obliquely and partially through a proposed amendment to section 20(3) of CEAA, which provides that in determining and implementing mitigation measures, a responsible authority is not limited to the powers, duties and functions laid out in its governing statute.

Several witnesses proposed that the self-assessment system be modified or replaced. They advocated a system of enforceable EA decisions, possibly generated by an independent agency. Elizabeth May, Executive Director of the Sierra Club of Canada, for instance, supported the establishment of an arm’s-length agency, stressing that penalties are needed to ensure compliance:

We, of course, over the years have noted that some of the things about CEAA, and before that the Guidelines Order, inherent in the environmental assessment process, create, essentially, a conflict of interest, in that self-assessment means the department that most wants to have a project proceed is responsible for making all the key determinations, in most cases — sometimes it’s slightly more arm’s-length than that. What changes can you bring to make a difference? Bring in some penalties for failure to observe the Act. Bring in some requirements. (Meeting 61)

The Committee believes the key issue before the government is the fundamental nature of the environmental assessment process. The seven-year review of the Act that is required under Bill C-9 should examine whether changes made under that bill have improved environmental assessment performance or not, and if not, the idea and process of self-assessment should be re-examined.

THE COMMITTEE RECOMMENDS THAT PRIOR TO, AND IN PREPARATION FOR, THE SEVEN-YEAR REVIEW BY THE PARLIAMENTARY COMMITTEE, THE COMMISSIONER OF THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT SHOULD BE ASKED TO REVIEW THE OPERATION OF FEDERAL ENVIRONMENTAL ASSESSMENT UNDER CEAA, AS AMENDED BY BILL C-9.

The Committee considers that a system for issuing enforceable EA permits by federal departments in accordance with guidelines prepared by the Agency would allow retention of the self-assessment approach of CEAA, but with more departmental accountability. Departments’ could be given broad authority to set terms and conditions for mitigation and follow-up in an EA permit.

A related improvement would be to make it an offence for a federal department or proponent to proceed with a project without an EA permit, or in breach of the terms and conditions of the permit. Such a permit system would build on the amendments made to the bill by the Committee at report stage to the duties of the Agency and would allow the Agency to scrutinize departmental compliance with the legislation, ensuring that projects do not proceed unless all EA requirements were met.

THE COMMITTEE RECOMMENDS THAT THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT BE AMENDED TO ESTABLISH A SYSTEM FOR THE ISSUANCE OF ENVIRONMENTAL ASSESSMENT PERMITS BY FEDERAL DEPARTMENTS, IN ACCORDANCE WITH CRITERIA PREPARED BY THE AGENCY, GIVING DEPARTMENTS AUTHORITY TO SET TERMS AND CONDITIONS FOR MITIGATION AND FOLLOW-UP.

THE COMMITTEE FURTHER RECOMMENDS THAT THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT BE AMENDED TO PROHIBIT, THROUGH THE USE OF PENALTIES, A FEDERAL DEPARTMENT OR PROJECT PROPONENT FROM PROCEEDING WITH A PROJECT WITHOUT A PERMIT, OR IN BREACH OF TERMS OR CONDITIONS OF A PERMIT.

3.3       Use of Environmental Assessment as a Constructive Tool to Improve Projects

Regrettably, CEAA is seldom used as a constructive tool to improve the sustainability of projects. In practice, inside and outside government, CEAA is too often viewed as a problem to be managed, and a burden on the proponents of industrial developments. The commitment to CEAA in many federal departments and industry is grudging, even if this reluctance is not stated publicly. Project decisions are frequently made long before EAs are conducted, making the relevance of EA (other than as a process for bringing forward mitigation measures) questionable. CEAA appears to assume that responsible authorities are both amenable to, and fully capable of, making environmentally sound decisions once the right information is put before them. The evidence demonstrates that the validity of this assumption is questionable. The information acquired by proponents through the EA process, in the absence of a framework of explicit environmental objectives and targets, seems to be largely wasted, rather than being used to improve the project to the benefit of the environment.

Witnesses appearing before the Committee provided examples of projects that were not assessed because they were determined to fall outside the purview of the Act, yet the projects had potentially environmentally harmful impacts. Based on his assessment of several cases, David Coon suggested that responsible authorities have been trying to avoid EA.

It would appear to us, based on these kinds of case studies, that the responsible authorities, to the degree possible, are trying to avoid CEAA or minimize its utility. CEAA is a hoop to jump through, and we don’t see the bill as addressing this problem particularly. (Meeting 69)

Federal departments have tended to avoid the inclusion of new or revised regulatory regimes in the Law List Regulations, because inclusion would render these processes subject to CEAA. Crown corporations, such as the Export Development Corporation, have made determined efforts to ensure that their operations are not subject to CEAA. To make matters worse, CEAA does not even apply, except in truly extraordinary situations, to projects undertaken in the Mackenzie Valley under a recently enacted federal statute, (the Mackenzie Valley Resource Management Act, S.C. 1998, c. 25).

Industry representatives, such as William Borland of the New Brunswick Environmental Industry Association, suggested that environmental management choices are being made that will allow proponents to avoid being subject to CEAA. In so doing, proponents may well be able to avoid the perceived burden of EA, but they also may not be making the best environmental decisions.

My own experience with the federal assessment process has seen development options overlooked to avoid federal land and avoid federal funding in order to avoid a federal assessment process. This has been done because the process was seen as open-ended, seen as a black hole. Once you got into it, you were never quite sure when or whether you’d ever get out. From the point of view of trying to budget a project, and from the point of view of looking at an economic window of opportunity, CEAA has the potential to be a disaster. In each case that I have dealt with, an environmentally acceptable alternative was chosen, but I might question whether the best environmental option was chosen. (Meeting 71)

There are other negative aspects to the current application of CEAA. One concern that the Committee heard repeatedly was that CEAA was being used simply to mitigate negative effects rather than to encourage positive steps in the planning stages of a project. By focusing on significant adverse environmental effects, the EA system is seen to discourage proponents from including in their projects elements that provide positive benefits to the environment. As Robert Gibson pointed out:

There should be a requirement under CEAA to take into account positive as well as negative effects. A colleague of mine, who was once the Director of Fish and Wildlife in Prince Edward Island, attempted to persuade the proponents of the fixed link bridge to include some habitat enhancements in the project. It would have been not very difficult. It would have been not very expensive. It would have been of substantial long-term benefit. He was not successful. (Meeting 65)

The Committee was encouraged to learn from Dr. Gibson that in some cases a more positive outlook is being taken. However, such instances appear to be exceptions to the rule.

The [Voisey’s Bay panel] required the proponents, through the guidelines for preparation of an environmental impact statement, to show that the undertaking would in the end leave the communities and ecosystems affected better off than when they began the concept of a net improvement. … the whole idea of sustainable development is premised on the idea that what we’re doing now is not sustainable. So it amounts to reversing direction from progressive unsustainability to something that is improving our situation. You can’t do that by merely reducing the negative effects. That just makes you go down the hill more slowly; it doesn’t move you in a progressive direction toward greater sustainability. The panel, recognizing this tension between the purpose of improving the situation and the normal interpretation of the law, which is to mitigate the most significant adverse effects, chose the higher test. (Meeting 65)

Although CEAA is not generally seen as a constructive management tool, the Committee heard from many witnesses suggesting that CEAA could be a positive force in managing project planning and monitoring. Elizabeth May offered these compelling thoughts:

The hard political reality is when the powers that want a project, an environmental review is perceived to be an obstacle. Environmental review and the public’s participation rights will be trampled. … It’s not only the environmental damage that comes from skipping environmental assessment, or doing it incorrectly. There are often economic costs to bad planning. I could give you a whole lot of examples, from the incinerator built in Sydney in the late eighties and early nineties, where they said they didn’t need an environmental assessment, except for a preliminary one, because it was an environmental project. They went ahead with it. Good planning would have caught the fact that $55 million was being wasted on something that didn’t work. (Meeting 61)

Lucien Cattrysse also stressed that a good EA process is a valuable planning tool for projects as a whole.

There’s the old saying, an ounce of prevention, a pound of cure. The cost of an environmental assessment is typically 1% to 3% of the capital cost of the entire project, and that’s a small price to pay, in our opinion, for some pretty effective decision-making information to be at hand for a project. … There seems to be a natural way to roll [the information generated by the environmental assessment] into an environmental management plan and then roll that information into an environmental management system that can be used as a framework for the whole organization around the project. (Meeting 64)

The challenge, then, is to determine how EA can be promoted as being a constructive tool with industry, federal departments, and decision makers so as to achieve results that benefit the environment. Ideally, the application of strong EA requirements should be welcomed as a way to enhance project planning, improve environmental protection, and in some cases, reduce costs.

THE COMMITTEE RECOMMENDS THAT THE MINISTER OF THE ENVIRONMENT DEVELOP AND IMPLEMENT MEASURES TO ESTABLISH ENVIRONMENTAL ASSESSMENT AS A CONSTRUCTIVE TOOL THAT ENHANCES PROJECT PLANNING AND IMPROVES ENVIRONMENTAL PROTECTION.

3.4       Panel Review of Major Projects

The bulk of federal EA resources are devoted to conducting screenings (which make up over 99% of all federal EAs) for small projects such as building pit privies in national parks, repairing wharves, and conducting scientific research in migratory bird nesting grounds. At the other end of the spectrum, major development projects that could have catastrophic effects on the environment are often assessed inadequately or not at all because of the limited application of the four CEAA triggers (i.e., federal land disposition, federal funding, federal proponent, federal license or permit included in the Law List Regulations).

The four triggers under CEAA assume narrow limits on federal authority. The Committee believes that this restriction prevents sufficient attention from being given to the assessment of major projects that could have irreversible and harmful effects on the environment. Projects of that order of magnitude should be assessed in a coordinated way by all levels of government involved, and with the full and active participation of the interested public.

Legal issues aside, the federal government is clearly seen by some members of the public as the level of government that should protect the Canadian environment. According to David Coon:

When Canadians are asked what they believe the federal government’s primary responsibilities should be, in addition to questions of national defence, they identify repeatedly defence of the Canadian environment. That’s the expectation we have of our federal government, that it play that role through the pieces of legislation it has. There needs to be cooperation in provincial agendas for development and so forth in areas of provincial jurisdiction, but when all is said and done, Canadians expect the federal government to represent us in defending the Canadian environment. (Meeting 69)

Elizabeth May told the Committee that the effect of the Projects Outside Canada regulation has been the uneven implementation of EA internationally. While huge federal loan guarantees for nuclear power plants have not triggered federal EAs, much smaller projects have done so.

The [Projects Outside Canada] regulation was an absurd result, and it still stands. Under the … regulation, minor projects — including such things as a manure management system for an ostrich farm in the same country, China — actually got an EA under CEAA, but nuclear reactors and mega-dams and anything really huge are exempt. (Meeting 61)

Domestically, the latter phase of the assessment of Project Millennium, which will double Suncor’s production from oil sands in northeastern Alberta, was improperly turned over to a provincial process. This development is one of eight approved oil sands projects, with seven more currently in the development process. Logging of 11 million hectares (an area larger than New Brunswick) of boreal forest in Manitoba received only a screening that examined the environmental effects of two bridges and their abutments. Placer mining in Yukon rivers and streams is routinely exempted from EA.

The challenge then is how to ensure that the environmental effects of projects of such importance are assessed appropriately. CEAA could, in the regulations, set out a list of projects that would automatically trigger the panel review provisions of the Act, which would mean the full participation of the public. EAs of projects such as dams on rivers that cross international or interprovincial boundaries, open-pit coal mines in close proximity to national parks, and nuclear reactors for export to countries lacking democratically elected governments should not be the sole responsibility of provinces or Crown corporations.

In expressing concerns that the current federal EA regime excludes such major projects from panel review under CEAA, many witnesses also offered a number of ways in which this problem could be resolved. Lucien Cattrysse suggested that a new list could be created under the regulations.

We would also recommend that CEAA include provision for assessment of projects that affect national interests. This category of projects … could be defined in much the same way as projects that are currently listed in the comprehensive study list. (Meeting 64)

Ed Norrena, Director of the Board of Directors for the Canadian Environment Industry Association, proposed a new federal approach for such major issues.

One might consider the global issues that are of concern to us, particularly in relation to climate change and persistent organic pollutants that are definitely of national interest, and have them captured. (Meeting 64)

A related challenge is ensuring that federal EAs occur at a timely point in the project development cycle. At present, CEAA assessments are often triggered late in the project development process (e.g., Fisheries Act authorizations), which frustrates proponents. Streamlining the process by which major projects are subjected to panel reviews under CEAA would capture some of these projects at an earlier stage to the advantage of proponents, the public, and the environment.

The Committee is of the view that major projects, especially the most potentially environmentally harmful ones, deserve the highest level of assessment that the Act affords — i.e., panel review or joint review panel. Panel reviews allow the public to participate fully and ensure that independent scientific and technical expertise is brought to bear. In addition, joint panel review allows the coordinated participation of interested levels of government. Projects of such importance should be automatically referred to a panel review, as a federal EA or jointly with other jurisdictions, as required.

THE COMMITTEE RECOMMENDS THAT THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT BE AMENDED TO REQUIRE THAT PROJECTS OF SIGNIFICANCE WOULD AUTOMATICALLY TRIGGER A PANEL REVIEW OR JOINT PANEL REVIEW. REGULATION-MAKING AUTHORITY UNDER CEAA SHOULD BE AMENDED AND REGULATIONS DEVELOPED AS NECESSARY TO ENSURE THAT SUCH PROJECTS ARE ASSESSED BY PANEL REVIEWS.

3.5       Assessment of Cumulative Environmental Effects

A critical challenge in EA is how to address the cumulative adverse effects on ecosystems of many, often small projects. An important innovation under CEAA is to require assessment of “any cumulative environmental effects that are likely to result from a project in combination with other projects or activities that have been or will be carried out.” Unfortunately, the promise of this innovation has not been fully realized. While the Agency has produced excellent guidelines for the conduct of cumulative effects assessments, implementation of the law and the guidelines at the project level has been erratic. Most EAs remain firmly focused on individual projects in isolation from other proposed developments. Bill C-9 does include a modest proposal to allow individual assessments to take into account findings from studies on regional environmental effects, but the Committee is of the view that the assessment of cumulative effects requires further attention and improvement.

The Commissioner of the Environment and Sustainable Development reached similar conclusions, and reported in 1998 as follows:

Of the 187 EAs in our sample, 159 were conducted by responsible authorities other than Parks Canada. We found that 48 of these 159 assessments indicated that cumulative environmental effects had been considered. In most of those assessments, however, there was little evidence to indicate the nature of the cumulative effects assessment, including whether there had been an analysis of the ecosystem and its stressors. In practice, only Parks Canada is considering cumulative environmental effects on a regular and rigorous basis.

The Agency should accelerate its work with federal authorities, provincial governments, academics, and other interested parties to encourage the assessment of cumulative effects, where appropriate. (Chapter 6, 1998 Report)

Cumulative effects have been assessed for several major projects, such as Great Whale and Cheviot (the latter only following a Federal Court of Canada decision sought by the Canadian Parks and Wilderness Society and other conservation organizations). The Committee heard from Elizabeth May on the need for a cumulative effects assessment of the Cheviot mine.

To use the example of the Cheviot Mine, for instance, near Hinton, Alberta, there was concern that with the amount of logging going on in that area, and an open-pit coal mine, and oil and gas activities, a cumulative effect of all of those would be devastating on grizzly bear habitat — more than just looking at that one project alone. In that sense it defines its eco-region; you’re looking at habitat of a particular species. (Meeting 61)

The Committee heard from Robert Gibson, however, that a more efficient way to address cumulative effects is through land use planning processes that operate at a landscape scale, and have sustainability and ecological integrity as objectives.

I have a bunch of grad students who are working at cumulative effects of diamond mining in the Slave geological province in the Northwest Territories. Doing that project-by-project, burdening each individual proponent with the cumulative effects of the whole, is not a very efficient way of doing that, nor particularly fair. If we had something that was more of a programmatic level to look at the overall effects of various development things associated with diamond mining in that area, it would be much more efficient, much more sensible. (Meeting 65)

The constitutional division of powers adds a layer of complexity to the issue. The difficulty with land use planning is that the federal government rarely has the jurisdiction to undertake such planning on its own. Land use planning is typically led by provincial, municipal, Aboriginal or comprehensive claims institutions, and federal involvement is not usually encouraged. One approach to enhance cumulative effects assessment under CEAA would be to identify ways in which federal EAs can be folded into land use planning processes. Another is to build federal authority to participate in regional EAs in areas experiencing multiple projects where some national interest is at stake (e.g., oil sands developments in northern Alberta, or diamond mining and road construction in the Northwest Territories) and to develop other vehicles that encourage cooperation among jurisdictions to carry out regional EAs.

Sustainable development cannot be achieved without understanding the cumulative effects of the multitude of projects being considered and undertaken across the country. In the absence of landscape-scale land use planning or regional EAs, the rigorous implementation of current CEAA cumulative effects assessment requirements would benefit the environment and facilitate ecological integrity. Also, cumulative effects assessment under CEAA must include a consideration of the impacts of all relevant developments, not just those subject to CEAA. Clearly, adequate resources must be provided to conduct assessments of cumulative effects, which has not typically been the case, and these costs should be split among the federal and other participating governments and proponents.

THE COMMITTEE RECOMMENDS THAT THE MINISTER OF ENVIRONMENT ENSURE THAT CUMULATIVE EFFECTS ASSESSMENT REQUIREMENTS UNDER CEAA ARE CONSIDERED PRIORITIES FOR THE CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY AND FEDERAL DEPARTMENTS.

THE COMMITTEE FURTHER RECOMMENDS THAT THE CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY EXAMINE AND REPORT ON THE USE OF

•	REGIONAL ENVIRONMENTAL ASSESSMENTS6 AS A TOOL TO EXAMINE CUMULATIVE EFFECTS; AND

•	APPROACHES TO INCORPORATE FEDERAL ENVIRONMENTAL ASSESSMENTS INTO PROVINCIAL, ABORIGINAL AND COMPREHENSIVE CLAIM LAND USE PLANNING PROCESSES.

3.6       Achieving Federal Environmental Commitments Through EA

EAs under CEAA focus on identifying the adverse environmental effects of proposed projects, determining whether or not these effects are significant, and identifying measures that would mitigate any adverse effects. Typically, EAs are not linked to achieving Canada’s international and other obligations, such as reducing greenhouse gas emissions, protecting biodiversity, and protecting the ecological integrity of national parks or other federally protected areas. For example, assessments of oil sands developments are not linked to meeting Canada’s Kyoto Protocol targets, nor do new assessments of mining or forestry projects typically refer back to the Convention on Biological Diversity or Canada’s Biodiversity Strategy.

Assessments that are carried out with clear environmental objectives and targets (rather than merely to meet the extremely vague CEAA “significance of adverse environmental effects” criterion) generally generate better information and results. The “net gain of fish habitat” policy of the Fisheries and Oceans Canada, and the Canada National Parks Act requirement that ecological integrity be the first priority in parks management, are examples of such objectives. EAs conducted by Fisheries and Oceans Canada and the Parks Canada Agency at least have some ecological context and are directed towards achievement of explicit policy objectives. Measurement and monitoring of ecological harm has some concrete application in the policy context, and hence some relevance to decision making.

Take the example of ecological integrity in national parks. Parks Canada attempts to translate the concept of ecological integrity into meaningful goals, objectives, targets and indicators for each national park, providing the overall orientation for the management plan of that park. When undertaking an EA, at both strategic and project levels, these goals become an important reference for determining potential direct and cumulative impact significance for any given park. In other words, ecological integrity goals, objectives, targets and indicators provide a scale against which impacts, either positive or negative, can be measured in the EA process.

The Agency has recognized the challenge of having clear goals and objectives, at least in part, by developing guidelines for determining significance on biodiversity. The Agency also hosted a workshop in January 2002 on the subject of EA and climate change. In practice, many EAs do not examine all environmental effects, but focus of the effects of so-called “valued ecosystem components,” which reflects a policy process at a micro-level.

A related issue is that proponents, civil servants, and consultants who prepare EAs, do not necessarily have easy access to information on the government’s environmental commitments, policies, goals and standards that are highly relevant to assessing the environmental effects of projects. The Agency could greatly assist these EA practitioners by making such information more easily accessible to them.

Witnesses recognized the value of tying the EA process to Canada’s environmental goals and commitments. One such example, where EA may be employed to help the government fulfill its goals, is that of the incomplete commitment to complete Canada’s protected areas. Peter Ewins, Director of Arctic Conservation for World Wildlife Fund Canada, described the problem succinctly:

In 1992 the Canadian Council of Ministers of the Environment, the Canadian Parks’ Ministers Council, and the Wildlife Ministers’ Council of Canada all signed a statement of commitment to complete Canada’s network of protected areas, being representative of Canada’s land-based natural regions, by the year 2000; and to accelerate such a network in Canada’s marine natural regions. … The job is only one-third complete on land, and it has not started yet in the water. Today, development decisions, with or without environmental assessment, continue to be made across our lands and waters, and these developments incrementally foreclose on the opportunity to complete such a network of representative protected areas. (Meeting 71)

To solve this problem and to help government achieve its commitments, World Wildlife Fund Canada and Canadian Parks and Wilderness Society proposed incorporating the concept of “Conservation First” into CEAA. Conservation First means that no new large-scale industrial projects would be approved in wilderness landscapes in the absence of land use plans developed with local community engagement that have set aside networks of protected areas. No EA permit under CEAA or other federal licence, such as for pipeline construction issued by the National Energy Board, could be issued in the absence of such land use plans.

Ensuring the consideration of Canada’s international obligations and commitments in EA would enable the enlargement of the process beyond strictly local, project-based analysis. As Pierre Fortin, Executive Director of the Canadian Hydropower Association argued, the EA process should do a better job of considering large-scale impacts, including those Canada has resolved to address in its national and international environmental commitments.

The present environmental assessment process places excessive emphasis on local impacts. I think that’s an important point. It does not take into consideration large-scale negative impacts on the environment such as acid rain, smog, and climate change, all of which have serious detrimental effects on the health of Canadians as well as our fisheries and forests. (Meeting 64)

A key challenge, therefore, is how to structure EA as a tool to achieve the government’s biodiversity, climate change, ecological integrity and other environmental objectives.

THE COMMITTEE RECOMMENDS THAT THE MINISTER OF THE ENVIRONMENT ENSURE THAT CANADA’S NATIONAL AND INTERNATIONAL ENVIRONMENTAL LEGAL AND POLICY COMMITMENTS, OBJECTIVES AND STANDARDS ARE INCORPORATED INTO THE ENVIRONMENTAL ASSESSMENT PROCESS UNDER CEAA.

THE COMMITTEE FURTHER RECOMMENDS THAT THE MINISTER OF ENVIRONMENT MAKE RECOMMENDATIONS TO THE GOVERNMENT OF CANADA FOR INCORPORATING THE “CONSERVATION FIRST” PRINCIPLE INTO CEAA AND OTHER FEDERAL LAWS.

3.7       Panel Reviews and the Promotion of Meaningful Public Participation

Public participation is identified as one of the key purposes of CEAA, yet the Committee heard evidence that the level of public participation was, at least in some respects, higher under the old EARP Guidelines Order than it currently is under CEAA. Panel reviews are a useful indicator of public participation, given that there is no requirement to hold public hearings for comprehensive studies, and no public participation requirement at all in screening. In the late 1980s, up to 14 panel reviews were being conducted simultaneously, whereas in 2002 there are only 2. More than 30,000 projects have gone through a CEAA screening since 1995, yet only one has been referred to a panel review.

Under CEAA, a project is supposed to be referred to a panel from a screening where significant adverse environmental effects have been identified or when there is uncertainty about the significance of these effects. It seems unlikely that all but one of these 30,000 projects have had environmental effects that were insignificant and certain. Given this unlikelihood, why was only one project referred to a panel review from a screening?

The Agency, the courts, and the Commissioner of the Environment and Sustainable Development all have certain accountability functions, yet panel reviews alone have the merit of providing scientific determinations independent of federal departments. The fact that panel reviews have occurred less frequently under CEAA than under its predecessor suggests both a reduction in meaningful public participation and in independent scientific input to EA in Canada. Evidence presented to the Committee by several witnesses suggests that the decision-making process with respect to referrals to panels and mediations is an area that merits consideration by Parliament.

That panel review is a critical part of the EA process was acknowledged by Environment Minister David Anderson, who, in his report to Parliament on the five-year review of CEAA, described panel reviews as being a “core strength” of the federal EA process. Consistent with that description, Rod Northey emphasized both the evolution and the importance of panel reviews in Canada.

In 1974 this government’s cabinet policy on environment assessment led to something called panel review. Panel review … made Canada a world leader in EA. There is no other country that had Canada’s insight or foresight to do that when Canada did. … Panel reviews occurred in approximately 50 instances prior to CEAA. Now, in terms of accountability, you have heard if you read the Minister’s statement, some projection or some estimate that approximately 30,000 projects have been assessed under CEAA over its period. … How many panel reviews have we had? … We have seen 10 panel reviews over the course of CEAA. (Meeting 73)

While an excellent source of scientific advice and public input, federal departments and proponents seek to avoid panel reviews because of the resulting expense and delay to the project. It was suggested to the Committee that panel reviews should not necessarily have to examine all elements or environmental effects of a proposed project. Mr. Northey argued that where a major project has one or two contentious aspects, perhaps those areas might be subjected to panel review, limiting the scope of the assessment, and thereby reducing costs and time involved.

It is not that a panel review that is comprehensive in scope could be done in three months. It’s that a panel review could be used to address specific issues, not a comprehensive project, and that the process could be done in months. Most provinces I’m familiar with have some administrative board proceeding that involves hearings of days or lengthy ones of weeks. All I’m suggesting is that there should not be an all-or-nothing approach to panel reviews, which is what we have now. “All” is all we have: two years and nothing less. (Meeting 79)

The consequences for members of the public of the failure to engage the public in the EA were highlighted in the moving testimony of Normand de la Chevrotiere, President of the Inverhuron & District Ratepayers Association, who described his Association’s failed struggle to have the proposed Bruce nuclear waste storage facility subjected to panel review.

[W]hen our children ask us, “What the hell happened here?” we can look them straight in the eye, hold our heads up high and say, “We did everything humanly possible. We exhausted every regulatory avenue. We exhausted every legal avenue. We did not fail you; the system and the government failed you.” This has left us so absolutely disillusioned that we’re wondering why we even have a government. Why do we have a regulator? Why do we even have a Canadian Environmental Assessment Act? If the world’s largest nuclear waste storage facility, housing the most toxic and deadliest of all industrial waste products does not merit a panel review, what would? I am here imploring this committee; I’m begging this committee to please make changes to the Act so no other citizens’ group has to go through the ordeal that we went through. Projects of this scope and magnitude should be subject to a panel review and [that] should be mandatory. (Meeting 73)

Michelle Campbell, Coordinator of Environmental Defence Canada’s Citizen Support Programme, advanced her organization’s view that without more panel reviews, the EA regime under CEAA falls far short of achieving the accountability and environmentally beneficial results that are expected of it.

More and more, it is becoming clear that CEAA is not a good tool for citizen participation, despite what we believe it was designed to do. Environmental Defence Canada had higher hopes for CEAA. We thought it would be better than the old EARPGO system and we still believe that it was designed to do more than it is doing for citizen participation but as it stands right now, it’s not working. If it were better than the previous process, how could 11 million hectares of boreal forest be approved for cutting with no more than an environmental assessment of one bridge? How could the world’s largest nuclear waste dump be assessed without a panel review? How could the destruction of Ontario’s largest wilderness waterfall be approved before citizens could even gain access to the information regarding the environmental assessment? (Meeting 73)

The Committee strongly believes that public participation is a key aspect of the EA process under CEAA. Bill C-9, as amended by Committee, should have lead to improvements in this area but Government motions No. 12 and 21, concerning screenings, have undone important components of these improvements. Public participation could, however, be encouraged through more frequent use of panel reviews. Panel reviews also have the added advantage of encouraging the use of independent scientific and technical expertise. The Committee acknowledges concerns about the length of time that panel reviews can take, but suggests that approaches to ensure more timely reviews by panels are available and feasible, keeping in mind the importance of avoiding duplication of effort with other EA processes.

THE COMMITTEE RECOMMENDS THAT THE MINISTER OF THE ENVIRONMENT AND CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY INCREASE THE LEVEL OF PUBLIC PARTICIPATION IN CEAA, AND THAT THE MINISTER USES HIS EXISTING POWERS UNDER THE ACT TO MAKE PANEL REVIEWS A KEY TOOL OF SUCH PARTICIPATION.

3.8       Incorporation of Aboriginal Perspectives

The five-year review sought to strengthen the incorporation of Aboriginal perspectives into EA. Bill C-9 includes amendments that would establish the promotion of “communication and cooperation between responsible authorities and Aboriginal peoples with respect to environmental assessment” as one of the purposes of CEAA, and authorize the consideration of “traditional Aboriginal knowledge” in conducting an EA.

Some witnesses felt that the incorporation of Aboriginal perspectives in work under CEAA has shown some improvement, but that there are still problem areas. Garry Lipinski, Ontario Co-Chair of the Métis National Council, suggested a number of areas in which the Agency can build on recent improvements to enhance the participation of Aboriginal communities and governments.

Our recent introduction as a full member to the Regulatory Advisory Committee of CEAA is a step in the right direction towards approving our role in the environmental assessment process. Working in the following areas could enhance this relationship with the federal government in relation to CEAA further, first, as the department applies the consultation mechanisms with Métis, First Nations, and Inuit people, such as under the Aboriginal working group on the proposed Species at Risk Act; second, in the harmonization of the act with existing aboriginal self-government structure and land claims regimes, in addition to provincial environmental assessment legislation; and in defining the role of aboriginal traditional knowledge as it pertains to the Act and full participation of the MNC and other National Aboriginal organizations in the development of federal guidelines. (Meeting 69)

In the view of the Committee, the Bill C-9 amendments are useful but do not fully reflect the growing role of Aboriginal governments and comprehensive land claims organizations in EA; nor do they recognize that Canadian law increasingly recognizes rights of Aboriginal people to be consulted and be engaged in EAs. Several specific areas of difficulty were identified by witnesses who testified before the Committee.

The Grand Council of the Crees noted that the federal EA regime under the James Bay and Northern Quebec Agreement is rarely employed and that Bill C-9 does not address this issue of lack of engagement. Diom Romeo Saganash, Director of Quebec Relations for the Grand Council of the Crees of Quebec (Eeyou Istchee), argued that the EA regime set out in the Agreement should be the one applied in the Cree territory of northern Quebec.

Section 22 of the James Bay and Northern Quebec Agreement calls for an effective federal presence in the formation of policy and in the review of projects that involve matters under federal jurisdiction. We were promised a special status whereby we would be part of the social and environmental impact assessment procedure at all levels and stages and in its interpretation and application. Moreover, in addition to providing that “the environmental and social protection regime applicable in a territory shall be established by and in accordance with the provisions of this section”, we were promised that the regime would not be changed without Cree consent. What do we find today? Today the regime is essentially neglected and rendered non-operative by Canada. That part of it that functions minimally, the James Bay Advisory Committee on the Environment, is not accorded its proper role in policy formation and is underfunded. Canada denies that federal assessment can be triggered under section 22 and instead imposes the Canadian Environmental Assessment Act on our territory in violation of the section of the treaty just cited. … We come before you to ask that you seek ways to implement section 22 of our 1975 treaty in a manner that respects the rights of the Cree people and is in keeping with the constitutional priority these rights have over other federal legislation. (Meeting 65)

The James Bay Northern Quebec Agreement also applies to the Nunavik region in northern Quebec. Paule Halley, member of the Kativik Environmental Advisory Committee, argued that Canada is failing to properly consult Inuit in that region, and acting outside its own legislation in applying CEAA there.

[The James Bay Northern Quebec Agreement] expressly forbids the implementation of a double federal procedure in the Nunavik territory. … The Canadian Environmental Assessment Act is not applicable on the territory of Nunavik. In this regard, I emphasize that outside of cases of double assessment provided for in the agreement, it is not possible to sign harmonization and delegation agreements, or to institute joint or substitution panels or as provided for by the Canadian Environmental Assessment Act, as these mechanisms do not exist in that agreement. In addition, the organizations which are created by the agreement, such as the Federal Assessment Committee, composed mostly of federal officials, do not have the inherent authority to sign harmonization, delegation and other agreements with the Canadian Agency. The agreement does not give them that power. The only way to change the terms of the agreement is to do so under its provisions. (Meeting 67)

The Assembly of First Nations (AFN) proposed that Section 4 of CEAA be amended to add recognition of Aboriginal governments as equal partners with federal and provincial governments with respect to EA as a purpose of the Act. The AFN also proposed that where Aboriginal or treaty rights may be affected, responsible authorities should “be required to notify appropriate Aboriginal authorities” to ensure their involvement in EA at the earliest possible stages of projects. Further, the AFN proposed that “Aboriginal and treaty rights that are likely to be affected by the project” should be added as a mandatory factor to be considered in an EA under CEAA. National Chief Matthew Coon Come advocated that the time has come to go beyond non-derogation clauses, and to actually reflect in legislation the government to government, nation to nation, relationship between the federal government and Canada’s Aboriginal peoples.

There’s always room for improvement. There are references to Aboriginal peoples, but I think we have to go beyond non-derogation clauses and interpretive clauses as if we were a special interest group. We’re not a special interest group. The Constitution recognizes that there are three Aboriginal groups in this country: the Métis, the Inuit, and us. Certainly we’ve signed treaties that are based on a nation-to-nation, government-to-government basis. It is those treaties that establish that relationship. The Royal Commission on Aboriginal Peoples recommended a partnership that is based on fairness and on equitable, real, meaningful participation, government-to-government and nation-to-nation. (Meeting 68)

Natan Obed, of Inuit Tapiriit Kanatami (ITK) joined with other witnesses in suggesting that more work must be done to ensure better integration of these regimes into the federal process for EA in Canada.

The Inuit feel that the negotiated mechanisms for environmental assessment under each land claim take precedence over CEAA, because these mechanisms are better suited for the Arctic, as they were developed by Inuit for the lands in which Inuit live. Along with the government, we have worked long and hard to develop environmental assessment that is meaningful, comprehensive, and includes Inuit in all decision-making processes. We do not want to lose these established systems. We also do not want to dilute our agreements by agreeing to comply with CEAA provisions when we have perfectly good mechanisms in place. (Meeting 68)

The Standing Committee supports the proposed amendments in Bill C-9 recognizing the importance of communication and cooperation with Aboriginal peoples in EA as well as authorizing consideration of traditional aboriginal knowledge in EAs. The establishment of an Aboriginal advisory committee by the Agency is also to be commended. However, the Standing Committee is concerned that federal EA is not keeping pace with legal developments relating to Aboriginal and treaty rights, nor has sufficient attention been paid at a policy level to the interaction between CEAA and EA regimes of Aboriginal and comprehensive claims institutions.

THE COMMITTEE RECOMMENDS THAT THE CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY WORK WITH ITS ABORIGINAL ADVISORY COMMITTEE TO CARRY OUT A SYSTEMATIC REVIEW OF LEGAL DEVELOPMENTS RELATING TO ABORIGINAL AND TREATY RIGHTS AS THEY APPLY TO ENVIRONMENTAL ASSESSMENT. IN ADDITION IT SHOULD STUDY THE INTERACTION BETWEEN CEAA AND ENVIRONMENTAL ASSESSMENT REGIMES OF ABORIGINAL AND COMPREHENSIVE CLAIMS INSTITUTIONS, WITH A VIEW TO DEVELOPING MORE EFFECTIVE ENVIRONMENTAL ASSESSMENT.

3.9       Improvement of Strategic Environmental Assessment

Another challenge not addressed in Bill C-9 is strategic environmental assessment (SEA), the assessment of proposed government policies, programs and plans. In 1998, the Commissioner of the Environment and Sustainable Development decried the slowness of federal departments in implementing EA of programs and policies as required by a 1990 Cabinet directive. The Committee has difficulty assessing the current level of compliance with the revised 1999 Cabinet directive given that virtually no information about SEAs is publicly available. At least a few departments (Environment Canada, Foreign Affairs and International Trade, Industry Canada, Transport Canada) have developed guidelines for the conduct of SEAs. Apparently, a number of SEAs have been undertaken for recent Cabinet submissions. As well, national park management plans are subjected to a strategic assessment under the current 1999 Cabinet directive, and subsequent business plans are also assessed under the Cabinet directive, if they contain additional details or proposals not already assessed as part of the park management plan.

A number of witnesses, including Peter Ewins, recommended that CEAA should include a regime for SEA:

I believe it would be extremely helpful for Bill C-9 to reflect, in very solid terms, this commitment to complete strategic environmental assessments for policies, programs, and plans originating from the federal government. (Meeting 71)

Karen Campbell, Staff Counsel for the West Coast Environmental Law Association, described SEA as “the heart of sustainable development.” She also pointed out that assessing types of projects in this way might reduce the number of individual project EAs being conducted under CEAA, which in turn might reduce costs and streamline the process.

If we were to do assessments of broad plans, broad policies, and broad directions, it would obviate the need for individual environmental assessments in a number of different circumstances. (Meeting 60)

Joan Kuyek also argued that CEAA should incorporate both project assessment and SEA.

First, I think it’s important to realize that our understanding is that it’s the Canadian Environmental Assessment Act that is supposed to make it possible to have that kind of open discussion about the values of a project. The information about whether supporting a coal-based industry or a nuclear industry is going to make a difference should be part of a strategic and project-specific environmental assessment. We’re here to ask for the government to exercise its responsibility that way properly. … I think it should encompass almost any program or policy that was introduced by the federal government, and there would be a screening program as there is for projects. The fact of the matter is, an awful lot of policy has often much more devastating implications for the environment and for the economy than a project does, and it would obviate a lot of smaller project screening if there were policy screening to start with, too. (Meeting 61)

SEA allows the consideration of cumulative impacts of projects in large regions, and indeed, across Canada. Implications going beyond the impacts of individual projects can be taken into account in policy assessments, and related to Canada’s environmental goals, including our international obligations. Martha Kostuch, Vice-President of Friends of the Oldman River, used the example of oil sands development to argue that a legislated SEA regime is necessary to ensure that we understand the overall effect this type of activity has on our environment.

The federal government, preferably in cooperation with the provincial government, should conduct a strategic EA of oil sands development and look at it in a broader sense. What are the positives, the benefits from it, and what are the impacts? Is oil sands development sustainable? Is it in the interests of Canadians and, more broadly, North Americans, the U.S., or is it not? The reason we will not be able to meet Kyoto is oil sands expansion, very simply. Yet that issue was not even addressed by the federal environmental assessment. … [I]t wasn’t Suncor itself and their expansion we’re concerned about. It is the totality of the oil sands development and the huge impact it will have on transboundary air quality, on greenhouse gases, and climate change, on the boreal forests, on waterways. The federal government should be conducting a strategic EA. Another question is this. Why is the federal government subsidizing oil sands expansion by favourable tax breaks? You’re contributing to our failing to meet Kyoto. … Did you even consider the environmental implications in making the decision to give tax breaks to oil sands development? Did you consider the impacts on our ability to fund health care when you gave those tax breaks? Those are the issues we should be looking at in a strategic EA. (Meeting 66)

A crucial feature of SEAs that distinguishes them from EA of projects is that, as under those conducted under the Farm Income Protection Act, they can be conducted after the program providing financial support has been started. This concept recognizes an important distinction between assessment of projects versus assessments of policies and programs. A dam or a nuclear power plant must be assessed before it is built, because once they are built the environmental harm cannot be undone, or if so, only at great expense and difficulty. Policies and programs rarely are so cut and dried; they develop incrementally over time and can usually be reversed if necessary. In addition, these after-the-fact SEAs have the advantage of not getting tangled up in Cabinet confidence issues, and allow for more careful scrutiny. Any SEA law should therefore include a provision providing federal authorities with the option of conducting the SEA following the decision to proceed with the proposal, where the federal authority determines that an after-the-fact SEA is in the public interest.

Suggested principles for any federal SEA statute could include: requiring that the environmental effects of proposed federal policies, programs and plans be assessed; establishing a public registry of such SEAs; affording a maximum of flexibility to federal departments to integrate the EA activity into decision-making processes; and employing existing institutions (e.g., Canadian Environmental Assessment Agency, departmental EA teams) to minimize administration costs.

For SEA to achieve its goals, there must also be a form of compliance that ensures implementation. The 1999 Cabinet directive was issued by the Clerk of the Privy Council, the top federal civil servant. Privy Council Office has declined responsibility for implementing the 1990 and 1999 Cabinet directives, relying on the Agency, which has virtually no authority to ensure that federal departments (let alone ministers) comply. Privy Council Office, which serves as the Prime Minister’s department as well as the secretariat for Cabinet, must take a leadership role if SEA is to be effective.

THE COMMITTEE RECOMMENDS THAT THE PRIME MINISTER DIRECT THE PRIVY COUNCIL OFFICE TO DEVELOP LEGISLATION, IN CONSULTATION WITH THE MINISTER OF ENVIRONMENT, AS SOON AS POSSIBLE BEFORE THE SEVEN-YEAR REVIEW, THAT ESTABLISHES A LEGAL FRAMEWORK FOR MANDATORY STRATEGIC ENVIRONMENTAL ASSESSMENT.